12 Following the arrest of the appellant on 24 June 1995, the various statements and other documents to be relied on by the prosecution at the committal, together with the statement required by s 48D, were served on the appellant's then solicitors and subsequently notice was given pursuant to s 48E(1)(a) that all witnesses were required to attend for the purpose of giving evidence. The committal proceedings were adjourned and ultimately came on for hearing on 16 February 1996 when there was no attendance by the defendant nor by any barrister or solicitor on his behalf. The magistrate heard evidence on oath from Sergeant Gaspert to the effect that the appellant although aware of the adjournment had not appeared; of service of the statements of witnesses upon his solicitors; that it had been notified to him that all witnesses were required to attend court for the purposes of giving evidence; and that he had taken steps to have those witnesses attend in court on that day. The magistrate being satisfied of these matters, he admitted the statements, including those of Mr Chenhall, into evidence and having read them formally committed the appellant for trial.
13 The matter first came before her Honour, the learned trial judge, on 2 August 1999 by which time Mr Chenhall had died on 28 December 1997, as a result of myo- cardial infarction and alcoholic cirrhosis, and it was indicated to her Honour that there was a preliminary issue to be determined, namely the admissibility of Mr Chenhall's two statements, the appellant's counsel submitting, as was the case before this Court, that the statements were not admissible because, notice having been given for the witnesses to attend for cross-examination and the appellant not having consented to them not being present, the statements of the deceased were not admissible in the committal proceedings, and therefore were not admissible at the trial pursuant to s 409(7) of the Crimes Act.
14 Although no evidence was led on this occasion, the matter being confined to legal argument on assumed facts, the proceedings on 2 August are conveniently referred to as "the first voir dire". The argument appears to have centred entirely around s 409(7) and a reference to s 65 of the Evidence Act 1995, was a remark in passing by her Honour. At the end of the argument, her Honour reserved her decision overnight, and the following day ruled that both statements were admissible but gave no reasons.
15 The trial was further adjourned and came on again on 5 October 1999 when the appellant was arraigned and pleaded not guilty. In the absence of the jury an application was made by counsel then appearing for the appellant for the two statements of Mr Chenhall to be excluded on discretionary grounds pursuant to the discretion said to be contained in s 409 itself, or alternatively pursuant to s 137 Evidence Act 1995. The basis of the application as stated by counsel was that the maker of the statements was a person who was not particularly reliable as he had a significant alcohol problem, was prone to psychotic episodes and to making false accusations against other persons. The Court thereupon embarked on a further voir dire ("the second voir dire") during which evidence was called on behalf of both the appellant and the Crown.
16 Her Honour gave judgment on that application the following day, 6 October 1999, with detailed reasons. In those reasons she reviewed the evidence of the witnesses that had been called. She noted that one of the witnesses called on behalf of the Crown, a Ms Reed, had not seen the appellant since 1990, that Dr Penny was unable to assist as to the deceased's mental condition and capacity to make the statements in June and August 1995, and that Ms Egan, with whom the deceased lived, although giving evidence of his drinking habits and other health problems, had a number of problems of her own and was unable to shed any light or any particular observation as to the deceased's ability or his capacity to make the statements. On the other hand, the police officer, the former Sergeant Gaspert, who had taken the statements, noticed nothing suggesting incapacity on the deceased's part to recall or make the statements. There was also evidence that the deceased had looked after his own financial affairs. In these circumstances her Honour was not satisfied that the prejudicial effect outweighed the probative value of the evidence contained in the two statements, although she noted that it would be necessary for there to be an appropriate direction, presumably to the effect that the deceased was not available for cross-examination before the jury.
17 The trial then proceeded. Mr Gaspert who had been in charge of the investigation at the time was cross-examined about taking the statements and agreed that when he visited the deceased's house to take the second statement, the interior was somewhat dilapidated and ramshackled, but he noticed nothing unusual about the deceased's manner of speech and found him quite easy to communicate with, and in particular that he did not have very slurred speech or anything of that nature.
18 Detective Sergeant Bayley, who by the trial had become the officer in charge of the matter, gave evidence that he had become aware of the death of the deceased, and the death certificate and the two statements with the annexures to the second one were tendered and admitted without objection. I regard the fact that they were admitted without objection at that stage to mean that no objection was taken to the formalities of the tender, but that the earlier objection to the admissibility was not withdrawn. After being tendered as exhibits, the statements were read to the jury, but as exhibits they subsequently went to the jury room whilst the jury considered its deliberations.
19 The first objection to admissibility under s 409 was the submission that that section was impliedly repealed by the provisions of the Evidence Act 1995 particularly s 65 dealing with the admissibility of representations by persons who are not available to be called as witnesses, and we were referred to a number of cases, including Goodwin v Phillips (1908) 7 CLR 1, Mitchell v Scale (1907) 5 CLR 405, and R v Chalak (1983) 47 ALR 600 at 602, Rose v Hvric (1963) 108 CLR 353 at 360 and Jennings Industries Limited v The Commonwealth (1984) 57 ACTR5 at 21, and to Pearce on Statutory Interpretation 4th ed. at p 198.
20 The two provisions deal with different subject matters even though there may be some overlapping, s 409 deals with admissibility of depositions and statements by witnesses at committal who have died by the time of trial, and s 65 deals with exceptions to the hearsay rule, and renders prior representations admissible in criminal proceedings where the maker of the representation is not available to give evidence. But in none of the cases referred to above did the later Act contain an express provision such as s 8 of the Evidence Act which expressly provides that that Act does not affect the operation of the provisions of any other Act.
21 There is no room for implied repeal where there is an express provision such as s 8 to the effect that there shall not be any such implied repeal. The effect of that section is that the Evidence Act is not intended to, and does not affect other mechanisms which are provided in state or federal legislation for the admission of evidence: cf Commissioner of Taxation v Karageorge (1996) 22 ACSR 119. In any event, the Parliament regarded s 409 as still applicable because it was repealed and re-enacted as ss 112 to 116, Criminal Procedure Act 1986, by the Crimes Legislation Amendment (Sentencing) Act 1999, see Act No. 94 of 1999.
22 Alternatively, if the appellant's argument was correct in this regard it might raise questions of whether s 65 was impliedly repealed by ss 112-116 Criminal Procedure Act, an argument which would obviously be untenable because s 65 covers a much wider field than the other provision. But even prior to Act No. 94 of 1999 the Evidence (Consequential and Other Provisions) Act 1995 which was enacted contemporaneously with, and was complementary to, the Evidence Act effected substantial amendments to the Crimes Act including the repeal of ss 408 and 410, but there was no amendment to or repeal of s 409, which was a long standing provision. I am therefore satisfied that s 409 was not impliedly repealed by any section of the Evidence Act, and was in force at the time of the appellant's trial.
23 The next submission was that the only statements of a deceased person admissible under s 409 were statements that were properly admissible at the committal and that, as notice had been given for the attendance of all the witnesses pursuant to s 48E(1) and the appellant did not consent to the admission of evidence of any of the statements, those statements, including the statement of Mr Chenhall, were not admissible as evidence under s 48A, and R v Adamiczka (1993) 33 NSWLR 68 and R v Stackelroth (1996) 86 A Crim R 438 were referred to.
24 Adamiczka was a case where s 48D(2), which requires the magistrate to address the defendant who is unrepresented in a prescribed form of words which includes the opportunity to ask for an adjournment, had not been complied with; and it was held that in the light of such non-compliance the relevant statement was not "properly admitted" pursuant to s 48A, and therefore was not a "prescribed statement" within the terms of s 409.
25 That, however, is a somewhat different case to the present where, although admitted to bail which required his attendance at the Local Court for the committal hearing, the appellant did not appear on 16 February 1996, and before proceeding with the committal hearing the proceedings were adjourned so that a warrant could be issued pursuant to s 41(1B)(d), after which the evidence for the prosecution could be taken in the absence of the appellant. It has been held in a number of cases that most criminal proceedings can proceed in the absence of a party who voluntarily absents himself, see for example R v Hallocoglu (1992) 29 NSWLR 67 at 71-73, (the case of a respondent to a Crown appeal against sentence, where the authorities are collected), and in a number of cases this has been referred to as "waiver": e.g. R v Abrahams (1895) 21 VLR 343 at 347-348, R v Jones No. 2 [1972] 1 WLR 887 at 891-2, 56 Cr App R 413 at 419-421. I see no reason why similar considerations should not apply to committal proceedings, so that where a defendant has voluntarily absented himself, particularly in breach of his bail undertaking (as here), he should be deemed to have waived his right to be present.
26 In R v Sullivan (CCA - 22 August 1995) it was held that the conditions prescribed by s 48C for admissibility of a statement could be "waived" by a defendant, so that notwithstanding the failure of the statement to comply with that section, having been admitted at the committal, the statement became admissible at the trial under s 407(7) following the death of the maker of the statement. In that case the defendant was represented at the committal.
27 The object of giving notice pursuant to s 48E(1)(a) is so that the witness can be present at the committal for the purposes of being cross-examined on his statement, as there could be no other purpose in the witnesses being required to attend. The giving of the notice for the witnesses to attend indicates that the appellant wished to cross-examine them, but the failure on his part to appear at the committal indicates that he no longer wished to do so. In my opinion, where a defendant has given notice, and subsequently by non-attendance has waived his right to be present, he should be deemed to have impliedly consented to the statement being tendered in his absence. Accordingly, I would regard the statements tendered in the present case as being "properly admitted", notwithstanding that notice had been given for the makers to attend at the committal, and there had been no express formal consent to the statements being tendered in the absence of the witnesses.
28 Stackelroth was concerned primarily with whether, if the conditions for admissibility under s 409(7) had been satisfied, there was a residual discretion to exclude a witness' statement apart from the general discretion to exclude unfairly prejudicial evidence; see now Evidence Act ss 135, 137. There was also an issue whether the statement in question had in fact been amongst the material tendered at the committal. The maker of the statement had in fact been cross-examined at length at the committal and no question of the defendant's failure to appear or to cross-examine was in issue.
29 The other matter raised in relation to s 409 was that the statements were tendered and went into evidence as exhibits instead of, as s 409 requires, being read to the jury. This is a technical objection which could have been but was not taken at the time they were tendered. This point was not covered by her Honour's rulings on either of the two voir dires, but when the statements were tendered near the end of the Crown case there was no objection, and I regard that as indicating no objection to them becoming exhibits, as opposed to being read to the jury. Although technically they should have been read to the jury rather than tendered as exhibits, it makes little difference in this day and age when the jury is often supplied with parts of the transcript and permitted to read the evidence of the witnesses. The objection not having been taken at the trial, Rule 4 applies, and as it is of a purely technical nature I would refuse leave to argue it.
30 For these reasons I am satisfied that the two statements of Mr Chenhall were admissible pursuant to s 409 of the Crimes Act as it then stood,
31 Even if the statements were not admissible under s 409(7) they were in my opinion admissible pursuant to s 65 of the Evidence Act 1995 which provides:
(1) This section applies in a criminal proceeding if a person who made a previous representation is not available to give evidence about an asserted fact.
(2) The hearsay rule does not apply to evidence of a previous representation that is given by a person who saw, heard or otherwise perceived the representation being made, if the representation was:
(a) made under a duty to make that representation or to make representations of that kind; or
(b) made when or shortly after the asserted fact occurred and in circumstances that make it unlikely that the representation is a fabrication; or
(c) made in circumstances that make it highly probable that the representation is reliable; or
(d) against the interests of the person who made it at the time it was made . . .